Hein, Morse, and Wisconsin Right to Life suggest some interesting differences among the members of the Supreme Court's conservative bloc.

Scalia and Thomas seem to be pursuing a different path than Roberts and Alito. The former want to blow things up quickly; the latter want to take them apart slowly. (Kennedy, the swing Justice, does whatever the hell he wants-- because, as a swing Justice-- he can.)

In Hein v. Freedom from Religion Foundation, Scalia and Thomas wanted to overrule a famous Warren Court precedent, Flast v. Cohen. Roberts and Alito merely wanted to chip away at it, with a decision that made little sense as a principled matter. (Scalia's "concurrence" to the plurality opinion is about as devastating as any dissent could be.) Kennedy, concurring, argued that we could rely on the legal integrity of the executive branch and the OLC not to violate the Establishment Clause (you remember, the same folks that gave us the torture memo).

In Morse v. Frederick, Thomas wanted to ditch another Warren Court precedent, Tinker, based on his reading of how states interpreted the First Amendment before it even applied to them. Roberts' opinion creates a new rule allowing schools to ban student advocacy of illegal drug use-- but this rule would apparently not extend to student advocacy of changing the drug laws. (Which raises the obvious question: How can we tell whether "Bong Hits 4 Jesus" is advocacy of illegality, political advocacy of drug liberalization, or just a joke?) Alito and Kennedy, who think of themselves as first amendment libertarians, tried to limit Roberts' opinion by arguing that students still had the right to make political and social statements, just not make statements that might threaten the physical safety of other students, and advocacy of illegal drug use threatened students' physical safety. (Of course the question of what sort of speech might threaten physical safety could easily swallow up the rule. For example, to use the facts of a recent 9th circuit case, what about a student who wears a t-shirt on "tolerance day" that says that homosexuality is against God's law? Would school officials be able to make the student remove the t-shirt on the ground that it might lead to fisticuffs? If so, then Alito and Kennedy's theory is not very speech protective at all.)

In FEC v. Wisconsin Right to Life, Roberts and Alito wanted to hold section 203 of the McCain-Feingold campaign finance act unconstitutional as applied to issue ads that that could be interpreted as anything other than a direct appeal to vote for or against a specific candidate. Scalia, Kennedy and Thomas wanted to overrule the 2003 decision in McConnell v. FEC upholding McCain-Feingold on its face. After all O'Connor was gone, so why should they keep her crazy 5-4 decisions around?

In all three cases, we see that Scalia and Thomas are much more willing to overturn existing doctrines that they oppose. Roberts and Alito, on the other hand, want to chip away at the doctrines slowly, using distinctions that make little sense on their own, but undermine older precedents-- leaving the possibility that they will be ripe for overruling later on.

It is the difference between bomb throwing and dismantling.

Kennedy, who is now the swing Justice, has lined up with the conservatives on almost all of the 5-4 cases this Term. That should not be surprising, if you know his views on drugs, on the establishment clause, and on campaign finance. Kennedy is more conservative than O'Connor was on a number of issues. As a result, the Court will shift to the right on all of those issues.

There are two ironies worth noting. The first is that George W. Bush promised to appoint Justices in the mold of Thomas and Scalia. But Roberts and Alito have not been willing to go as far as Thomas and Scalia in these cases. That may be because they are new on the Court and not yet ready to overrule cases left and right (mostly to the right). Or it may be because they are genuinely "conservative" in the sense of preferring slow and steady incrementalism to the large changes in doctrine that Scalia and Thomas prefer. In any case, Roberts and Alito do not seem to be "in the mold" of Scalia and Thomas, although, to be sure, they seem to be just as conservative, and perhaps that is what Bush really meant.

The second irony is that Chief Justice Roberts had hoped to produce more consensus and fewer plurality opinions during his time as Chief Justice. Yet, even in cases in which he and Alito agree with Scalia and Thomas on the result, he couldn't manage to get a majority opinion in Hein and Wisconsin Right to Life.

We will see how the school desegregation cases turn out later this week. There is little doubt in my mind what the result will be: the Court will hold the school assignment policies unconstitutional. O'Connor is no longer on the Court, and Kennedy's views about the illegality of racial classifications have been made quite clear over the years. The interesting question will be whether the Court will produce a majority opinion or a fractured set of opinions like Hein and Wisconsin Right to Life. My guess will be that Roberts will be able to find common ground among the five by writing an opinion that uses strict scrutiny to strike down the pupil assignment policies.

While this is a definite improvement over O'Connor, I am not seeing the reported Roberts' ability to forge unified opinions. I am under no illusion that Roberts will be able to persuade the left wing of the Court to join the conservative project of rolling back past overreaching opinions, it would be nice if he could get the five conservatives on a single sheet of music.

the other three, i (sorta) understand why conservatives would rejoice. (i think a true conservative would balk at government funding of religion, but perhaps the conservative standing doctrine trumps the substantive conservative desire to keep religion out of government, and vice versa in this case) the bong hits one, i don't know. governmental infringement, contrary to a textual ban in the constitution, on liberty is conservative?

ps when i say conservative, i mean real conservative, not the authoritarian in conservative clothing

The "bong hits 4 Jesus" case is a conservative win because the First Amendment was never intended to be absolute -- especially not for school students who are there to learn rather than advocate illegal drug use -- another smack-down to the 9th Circuit (unless you have re-defined the word real "conservative" to mean keeping the status quo under Roe v. Wade now too?). There is also no freedom FROM religion guaranteed in the Constitution. I've read all the cases decided today and agreed with all of them. Next question?

Removing arbitrary court created limits on religion in the public square, unconstitutional congressional limits on political speech and court imposed environmental regulations on the EPA (soon to be joined with the expected decision against government racial discrimination) are all rather libertarian decisions.

The "bong hits 4 Jesus" decision is more of a traditional conservative restriction of speech at school. It really did not break any new ground in allowing schools to prohibit speech advocating illegal activity.

i must say, government sponsored religion sounds anti-libertarian to me. and Charles, there is freedom from religion in the constitution, its called the establishment clause. whether it is being infringed here (due to the President's anti-discriminatory policy) is another question. But a true libertarian would not want government sponsorship of religion, so i must disagree with Bart on that one. Nonetheless, when it comes to that decision, (i have only had time to read bits and pieces) it seems it was based on standing issues, not the substance of the claims.

as far as bong hits, that is most certainly not libertarian, and i think not really conservative. Alito and Kennedy do a little dance around it, and Roberts is less than solid on principle. Scalia seems more interested in getting rid of precedent than the facts at hand. The issue seems murky to me.

if the sign said "students for Jesus," would that be allowed? if it said "guns for Jesus?" "bong hits are bad?" seems to me, the regulation is not content neutral, rather it is deciding content. conservatively speaking, should the government decide what content is appropriate? Charles, your answer doesn't analyze government content selection issues present, and injects roe v wade for some unknown reason. After all, we do not have an amorphous penumbra here, we have literal text from the constitution. Bart, your analysis is more honest, but how do you address the possible content selection issues that could arise? How is the language in the sign advocating illegal activity, as opposed to something unpopular with the school? where does the line between advocacy of illegal activity, and advocacy for changing law to allow once illegal activity lie? (or just a silly sign for tv attention putting Jesus and bongs next to each other?) How is government control over speech content "conservative?"

[nerpzilla]: how is the "bong hits 4 Jesus" case a good conservative win?...governmental infringement, contrary to a textual ban in the constitution, on liberty is conservative?

ps when i say conservative, i mean real conservative, not the authoritarian in conservative clothing

[Charles]: The "bong hits 4 Jesus" case is a conservative win because the First Amendment was never intended to be absolute -- especially not for school students who are there to learn rather than advocate illegal drug use -- another smack-down to the 9th Circuit ...

'Nuff said. Some folks describe their positions; other simply demonstrate the truth of what others have said.

The "bong hits 4 Jesus" decision is more of a traditional conservative restriction of speech at school. It really did not break any new ground in allowing schools to prohibit speech advocating illegal activity.

A "traditional conservative restriction of speech". ROFLMAO.... You gotta love it when the "conservatives" take off the disguises and come out as what they really are.....

"Well, I'm not calling for the repeal of the 13th and 14th Amendments -- if that's what you people think "conservative" is -- I am also NOT a libertarian."

Okay, we've taken care of the libertarian aspect. I'm not sure anybody has ever asserted a return to slavery or inequality under the law was a "conservative" position, so i'm not sure where you would get that from.

"conservative" to me, tends to mean a dislike of change, liking small government, free markets, and traditional concepts of liberty, along with a healthy fear of government exertion of power. the bong hits case seems to be an affront to most of those principles. so again, what makes the decision "conservative?" note: i am not bringing up roe v wade, nor any reconstruction amendments, as reference to them seems as bizarre as irrelevant. is my definition of conservative incorrect? what is yours, and how does bong hits fit in with it? its not really a legal question (although the supposedly "conservative" concepts of minimalism and judicial restraint could play a role), but why is government intrusion into speech okay and "conservative," but government intrusion into speech (when its dollars in campaigns) not okay and "conservative?" seems to me, the campaign finance case and the bong hits case are really at each others' throat. How can they be reconciled, without saying government intrusion is okay dependent on the content of speech, and judges will determine what speech content can be intruded upon? is this not judicial activism? and how can judicial activism be considered "conservative," cynicism to the side?

i must say, government sponsored religion sounds anti-libertarian to me. and Charles, there is freedom from religion in the constitution, its called the establishment clause. whether it is being infringed here (due to the President's anti-discriminatory policy) is another question. But a true libertarian would not want government sponsorship of religion, so i must disagree with Bart on that one.

Rewriting the Establishment Clause from its intended ban on the establishment of a state religion to the judicial creation of an absolute wall between church and state is a purely leftist, not libertarian, legal fiction.

Anyhow, this case involved the government subsidy of social services provided by religious NGOs, not government sponsorship of religion and certainly not the establishment of a state religion.

Conservatives have never been hesitant to use government to enforce or defend traditional social values, whether that was government-enforced apartheid in the 1950s or prayer in schools today. In the South (where I am from), politicians frequently run as "true conservatives"--supporting high school students' right to advocate marijuana use (even in jest) has, to my knowledge, never been part of the platform.

"Rewriting the Establishment Clause from its intended ban on the establishment of a state religion to the judicial creation of an absolute wall between church and state is a purely leftist, not libertarian, legal fiction."

Are you kidding me? Please tell me Thomas Jefferson's opinion on the matter. Who do you think coined the phrase? Mr. President

To messers Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson a committee of the Danbury Baptist association in the state of Connecticut.

Gentlemen

The affectionate sentiments of esteem & approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful & zealous pursuit of the interests of my constituents, and in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more & more pleasing.

Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state. [Congress thus inhibited from acts respecting religion, and the Executive authorised only to execute their acts, I have refrained from presenting even occasional performances of devotion presented indeed legally where an Executive is the legal head of a national church, but subject here, as religious exercises only to the voluntary regulations and discipline of each respective sect.] Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

I reciprocate your kind prayers for the protection and blessing of the common Father and creator of man, and tender you for yourselves and your religious association, assurances of my high respect & esteem.

(signed) Thomas JeffersonJan.1.1802.

I guess he was a leftist. Oh and Jefferson had no libertarian street cred either. and its a legal fiction made up in the new deal. that is totally a right-wing revisionist history talking point. why would a libertarian, by definition, support government intrusion in a fundamental liberty?

I suggest you study various language from the state constitutions at the time of the framing. "respecting" was chosen specifically for its broadness (from New Hampshire, if i recall correctly, and i may not), not for a limited role as solely banning state (in this case, national) establishment of religion. they could have worded it as modern day right wing revisionists choose to read it, dropping "respecting," but they did not.

"conservative" to me, tends to mean a dislike of change, liking small government, free markets, and traditional concepts of liberty, along with a healthy fear of government exertion of power. the bong hits case seems to be an affront to most of those principles.

These values can be in tension with each other, especially where drugs are concerned. For instance, a T-shirt that says, "Bong hits 4 Jesus" is hardly an affront to free markets, and action by the school to ban it can be seen as an affront to small government and "a healthy fear of government exertion of power."

OTOH, the T-shirt is an affront to tradional and dislike for change. Of course, the free market is a frequent agent of change and destroyer of tradition.

Footnote 7 from CJ Roberts' opinion in Wisconsin Right to Life reverses that awful decision eviscerating the First Amendment in McConnell without actually saying that that is what he is doing:

JUSTICE SCALIA thinks our test impermissibly vague. See post, at 11-12 (opinion concurring in part and concurring in judgment). As should be evident, we agree with JUSTICE SCALIA on the imperative for clarity in this area; that is why our test affords protection unless an ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. It is why we emphasize that (1) there can be no free-ranging intent-and-effect test; (2) there generally should be no discovery or inquiry into the sort of "contextual" factors highlighted by the FEC and intervenors; (3) discussion of issues cannot be banned merely because the issues might be relevant to an election; and (4) in a debatable case, the tie is resolved in favor of protecting speech. And keep in mind this test is only triggered if the speech meets the brightline requirements of BCRA s 203 in the first place.

While a reversal of McConnell and a declaration that McCain-Feingold is a violation of the First Amendment would have been cleaner, this holding accomplishes most of that while allowing to Court to save face.

BD: "Rewriting the Establishment Clause from its intended ban on the establishment of a state religion to the judicial creation of an absolute wall between church and state is a purely leftist, not libertarian, legal fiction."

Are you kidding me? Please tell me Thomas Jefferson's opinion on the matter. Who do you think coined the phrase?

Thomas Jefferson's opinion in a letter on the degree of contact (or lack thereof) he preferred between the state and religion is irrelevant. The First Amendment's text is clear that the federal government shall not establish a state religion, that was the understanding of the text among the drafters and the ratifiers of the Constitution and that was the understanding of the courts for most of our history. It was not until the leftist FDR Court a century and a half later that Mr. Jefferson's opinion gained the status of its own amendment to the Constitution.

let's see, the man who was the drafter of the declaration of independence, the foremost thinker at the time of the revolution, the mentor to the main architect of the constitution, and the third president - his opinion of the meaning of the first amendment is irrelevant? seriously? you can say that with a straight face, and asserting your reading of the constitution is more indicative of its meaning than TJ's?

more importantly, you said this:

Rewriting the Establishment Clause from its intended ban on the establishment of a state religion to the judicial creation of an absolute wall between church and state is a purely leftist, not libertarian, legal fiction

now, putting aside the true meaning of the amendment for a minute, the concept is not "a purely leftist, not libertarian, legal fiction." Just admit this assertion is completely and utterly wrong. You don't have to concede this was the original understanding of the establishment clause (yet), but you cannot honestly claim the wall of separation between church and state is some New Deal, leftist concept. TJ had it over two hundred years ago, and there are few (if any) sources better than him as to the principles of liberty in this republic.

As to its actual meaning, Thomas Jefferson, along with most of the Framers, felt this way, at least as it pertained to the nation government. i have presented evidence, from a very relevant source, that this was the original understanding of the First. Where's your evidence this was not the case?

There are two ironies worth noting. The first is that George W. Bush promised to appoint Justices in the mold of Thomas and Scalia.

Um no, actually he promised no such thing. The “appoint Justices in the mold of Thomas and Scalia” was a line from a speech that then Vice President Al Gore made when he was running against then Governor George W. Bush for president. Generally promises by one’s opponents are not considered to be binding promises made by the candidate.

Speaking broadly, it looks as if these decisions and the comments here support the argument that today's "conservative" is at bottom an institutional authoritarian. I find it interesting that supporters of these types of decisions seem to assume that they will never come up against an entity larger than themselves and that they will control the levers of power forever. For those who think this is all great news, I suggest that they be very very careful lest they find themselves the next Frank Robbins.

As for Bart, well, his retort on the Jefferson point is one of the funnier things he's written in some time.

ps to nerpzilla: If you haven't already done so you might want to poke around in other comment threads on this blog before you spend any more energy engaging with Bart. But that's just a suggestion.

Good point, Thorley Winston. I will clarify that Bush repeatedly promised to appoint "strict constructionists" -- I note also that Bush conveyed the following on November 21, 1999 in a Meet the Press interview:

I, too, understood Bush, in his inarticulate way, to be promising new Justices in the mold of Thomas and Scalia. Mind you, I figured that promise was nothing more than a lie, since there was no chance Mr. "Compassionate conservative" was going to want a Court that would declare all his new programs to be beyond the enumerated powers the federal government was entitled to exercise.

I voted for him because I figured he might nominate originalists by mistake, or under pressure. And there was no way that would happen with Gore or Kerry.

Can I assume the Bush "programs" you are so eager to see struck down No Child Left Behind, the prescription drug benefit and so forth? What is your opinion on the constitutionality of warrantless surveillance, Guantanamo, Jose Padilla, etc. I don't think you've ever given a straight answer on that.

No one has addressed whether supporting government dictated preference for content of speech is a conservative value. I'd be interested if either of you think this is the case.

Mr. DePalma,

have you found any evidence of original intent differing from the voice of the very relevant Thomas Jefferson? [oh, and by the way, the "TJ is irrelevant" followed by "understanding of the text by the ratifiers and drafters of the constitution" - priceless. i mean, who is this Jefferson guy, and what does he know about people starting a democratic republic at the end of the 18th century on the American continent, anyways? what, he wasn't, like, secretary of state at the time or anything, and Madison totally had no respect respect for his ideas, and neither did the rest of the country, right?] Perhaps I could throw a little Madison in for good measure -

"Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us." - James Madison

"Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?" - James Madison

"The civil Government, though bereft of everything like an associated hierarchy, possesses the requisite stability, and performs its functions with complete success, whilst the number, the industry, and the morality of the priesthood, and the devotion of the people, have been manifestly increased by the total separation of the church from the State." - James Madison

Now, maybe TJ was a little to theoretical for your tastes (he was in France at the debates on the Constitution, though communicating w/ his pupil), but it don't get any better than J-Mad. Plus, please address the fact that more narrow language was repeatedly rejected during the debates on the establishment clause, and the approved language is the broad, vague "respecting an establishment of religion" we all know and love. (also note the removal, during the debates of the word "national" before "religion," suggestive of the broadening nature of the clause, eh?)

sparky-i appreciate the head's up. but, i've hung around balkinization long enough to know the road i down which i tread. i don't really plan to get anything near an honest debate, but for some reason, i'm feeling a little masochistic today.

... why is government intrusion into speech okay and "conservative," but government intrusion into speech (when its dollars in campaigns) not okay and "conservative?" seems to me, the campaign finance case and the bong hits case are really at each others' throat.

I think you've hit on the essence of eau de conservatisme. Or, in the words of Bobby Zimmerman, "money doesn't talk, it screams"....

Anyhow, this case involved the government subsidy of social services provided by religious NGOs, not government sponsorship of religion and certainly not the establishment of a state religion.

No. That was not the issue (or at the least is a dishonest "reframing" of the issue). The problem is not the funding of social programs run by religious organisations per se (current law allows such aid as long as it isn't given exclusively to religious ... or non-religious ... organisations). The core issue was whether the selective attention given to religious organisations to the exclusion of non-religious ones by the WH Office of Faith-Based and Community Initiatives violated the First Amendment. The case as presented to the Supreme Court turned on standing and the reach of Flast v. Cohen for tax-payer standing in such cases. With a different plaintiff, the court may well have decided that the program was illegal had they had to rule on the merits.

To be sure, the logic expressed by the plurality here is bass-ackwards; they said that only specific actions of Congress can be challlenged, and that the executive is immune from such taxpayer suits (even if they're using taxpayer money). But how does a taxpayer then rein in an illegal executive? Why should an executive, acting contrary to the Constitution, be held with less check that the supposedly more democratically accountable Congress?

When interpreting the Constitution, you start by actually reading the provision at issue. The Establishment Clause states:

Congress shall make no law respecting an establishment of religion...

Establishment is the act of forming an organization or, in this case, a state religion. The Establishment Clause text nowhere calls for a broader separation of church and state in all matters.

While it is true that Madison had a more expansive personal view of separating church and state which he expressed after the Constitution was drafted, he sold the Establishment Clause to the other drafters as a prohibition of establishing a state church which would be preeminent over other churches.

During the recorded debates among the drafters of the Constitution, James Madison suggested that the word "national" be inserted before religion in the Establishment Clause to clarify its purpose but the other drafters did not think it necessary.

Madison summarized the Establishment Clause in this way:

Congress should not establish a religion and enforce the legal observation of it by law, nor compel men to worship God in any manner contary to their conscience, or that one sect might obtain a pre-eminence, or two combined together, and establish a religion to which they would compel others to conform (Annals of Congress, Sat Aug 15th, 1789 pages 730 - 731).

None of the recorded debates among the drafters of the Constitution mentions a complete separation of church and state.

Nor was the Establishment Clause sold to the ratifying state legislators as requiring a complete separation of church and state.

After the enactment of the Constitution, Congress did not think itself limited by the Establishment Clause from acting on religious matters. The same First Congress which drafted the Bill of Rights also opened its legislative session with a prayer and voted to appropriate government funds to establish Christian missions in Indian territory.

Your and the Court's cherry picking of the personal views of Madison and Jefferson (who was not even involved in the enactment of the Constitution) shows the hazards that original intent can be used unscrupulously to reach ends which are contrary to the plain meaning of the constitutional text.

"Congress should not establish a religion and enforce the legal observation of it by law, nor compel men to worship God in any manner contary to their conscience, or that one sect might obtain a pre-eminence, or two combined together, and establish a religion to which they would compel others to conform (Annals of Congress, Sat Aug 15th, 1789 pages 730 - 731)."

Yeah. No one thought that Congress was going to invent some new religion. The fear was that they'd "establish" one (or a few) existing religion(s) to its advantage and exclude others.

Giving "preference" is pretty much the same as "establishing" "pre-eminence".

None of the recorded debates among the drafters of the Constitution mentions a complete separation of church and state.

True, but that metaphor was what Jefferson used to describe the understanding that they did have.

Nor was the Establishment Clause sold to the ratifying state legislators as requiring a complete separation of church and state.

I note that "Bart"'s doing his typical "reframing" here, tossing in the "complete" into Jefferson's "separation".

Your and the Court's cherry picking of the personal views of Madison and Jefferson (who was not even involved in the enactment of the Constitution) shows the hazards that original intent can be used unscrupulously to reach ends which are contrary to the plain meaning of the constitutional text.

Jefferson wrote the Virginia Bill for Religious Freedom, which James Madison defended in his famous "Remonstrance", and which formed the basis for the thinkng of the founders in the First Amendment.

"Bart" apparently thinks that there's other, better, "authorities", but as usual, no cites from this "Bart", and no names of who such authorities might be.

"Congress should not establish a religion and enforce the legal observation of it by law, nor compel men to worship God in any manner contary to their conscience, or that one sect might obtain a pre-eminence, or two combined together, and establish a religion to which they would compel others to conform (Annals of Congress, Sat Aug 15th, 1789 pages 730 - 731)."

Yeah. No one thought that Congress was going to invent some new religion. The fear was that they'd "establish" one (or a few) existing religion(s) to its advantage and exclude others.

Giving "preference" is pretty much the same as "establishing" "pre-eminence".

Actually, the Establishment Clause both bars Congress from creating a new state church ala Henry the VIII's Anglican Church or choosing a preexisting religion as the state church as the Spanish did with the Catholic Church.

BD: None of the recorded debates among the drafters of the Constitution mentions a complete separation of church and state.

True, but that metaphor was what Jefferson used to describe the understanding that they did have.

Jefferson did not claim that he was speaking for the drafters of the Constitution.

BD: Nor was the Establishment Clause sold to the ratifying state legislators as requiring a complete separation of church and state.

I note that "Bart"'s doing his typical "reframing" here, tossing in the "complete" into Jefferson's "separation".

How am I reframing the question? The Establishment Clause barred Congress from establishing a state church. Thus, the Establishment Clause does require a separation of church and state to that degree. Jefferson can be read as arguing for a complete wall between church and state.

BD: After the enactment of the Constitution, Congress did not think itself limited by the Establishment Clause from acting on religious matters....

False. See the link (and subsidiary links) above, for starters.

... The same First Congress which drafted the Bill of Rights also opened its legislative session with a prayer ...

See here.

The Supreme Court claims that the Establishment Clause bars prayer in school. There is no functional difference between prayer in school and prayers to open a session of Congress. Your link notes that prayer in Congress was a tradition before the Establishment Clause was enacted and continued thereafter. That is precisely my point. The Court did not allow school prayer to continue even though school children had been traditionally led in prayer for a century and a half after the enactment of the Establishment Clause.

BD: ... and voted to appropriate government funds to establish Christian missions in Indian territory.

See here.

arne, would this statute be constitutional under today's jurisprudence? Of course not. Point made.

[Arne]: Yeah. No one thought that Congress was going to invent some new religion. The fear was that they'd "establish" one (or a few) existing religion(s) to its advantage and exclude others.

[Arne]: Giving "preference" is pretty much the same as "establishing" "pre-eminence".

Actually, the Establishment Clause both bars Congress from creating a new state church ala Henry the VIII's Anglican Church or choosing a preexisting religion as the state church as the Spanish did with the Catholic Church.

True. But it did more. The gummint couldn't prefer a religion or single it out, much less make it the de jure state religion. Why do you keep missing that point?

["Bart"]: None of the recorded debates among the drafters of the Constitution mentions a complete separation of church and state.

[Arne]: True, but that metaphor was what Jefferson used to describe the understanding that they did have.

Jefferson did not claim that he was speaking for the drafters of the Constitution.

"Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for is faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church and State."

IOW, YFOS. Q.E.D.

["Bart"]: Nor was the Establishment Clause sold to the ratifying state legislators as requiring a complete separation of church and state.

[Arne]: I note that "Bart"'s doing his typical "reframing" here, tossing in the "complete" into Jefferson's "separation".

How am I reframing the question? The Establishment Clause barred Congress from establishing a state church. Thus, the Establishment Clause does require a separation of church and state to that degree. Jefferson can be read as arguing for a complete wall between church and state.

Thanks. ;-)

["Bart"]: After the enactment of the Constitution, Congress did not think itself limited by the Establishment Clause from acting on religious matters....

... Your link notes that prayer in Congress was a tradition before the Establishment Clause was enacted and continued thereafter. That is precisely my point....

But Madison, author of the First Amendment, opposed it. That it is tolerated is that it is (at least, according to the theory) "ceremonial" and de minimus.

... The Court did not allow school prayer to continue even though school children had been traditionally led in prayer for a century and a half after the enactment of the Establishment Clause.

There were no public schools for a century or so after the enactment of the Establishment clause.

FWIW, to get a court case, you need a plaintiff (right, "Bart"?). Took a while for some Jehovah's Witnesses to get up the nerve to go after their rights in the face of majority prejudice and hostility.

["Bart"]: ... and voted to appropriate government funds to establish Christian missions in Indian territory.

We need not give Jefferson's personal opinion on the matter any more attention than any other citizen, including you or I.

You interpret the Constitution like a contract by going first to the text and then, only if the text is vague, to the original intent of the parties involved in drafting and ratifying the Constitution. Mr. Jefferson's opinion goes further than the text of the Establishment Clause and he was neither a drafter or a ratifier of the Constitution. Thus, his personal opinion has no place in interpreting the Establishment Clause.

First, thank you for the response. I will address your points one by one.

When interpreting the Constitution, you start by actually reading the provision at issue. The Establishment Clause states:

I did not invoke original intent first. You were the one who stated:“Rewriting the Establishment Clause from its intended ban on the establishment of a state religion to the judicial creation of an absolute wall between church and state is a purely leftist, not libertarian, legal fiction.”

“that was the understanding of the text among the drafters and the ratifiers of the Constitution and that was the understanding of the courts for most of our history.Congress shall make no law respecting an establishment of religion...”

I simply proved that two crucial founders disagreed with your statements regarding their intent.

Establishment is the act of forming an organization or, in this case, a state religion. The Establishment Clause text nowhere calls for a broader separation of church and state in all matters.

This is a logical fallacy of reading in a definition into the clause without context. You cite to the annals of Congress, but fail to note the Senate, on three occasions, tried to narrow the amendment to simply non-preference over sects. This would ignore Washington’s letter to the first Jewish temple in America, Jefferson’s understanding of the amendment, Madison’s Memorial and Remonstrance or his understanding of the amendment he proposed, and George Mason’s understanding of his Virginia amendment he created, upon which the establishment clause borrows most of its understanding.

More importantly, your reading is sloppy. The clause states “Congress shall pass no law respecting an establishment of religion.” The preposition “of” is used instead of “a” because of the general aspect of the clause. Your reading reads out the “of” and reads in “a,” making the clause specify no establishment of a national religion. By using “of,” the clause no longer discusses the establishment of a single religious sect, but instead, “establishment of religion” must be read together. “respecting” is specifically chosen also – early proposals also had “touching” as the word – to create a broad nature of the amendment. This is where the Senate tried, and failed, to get rid of “respecting.” Reading it your way, “respecting” becomes superfluous, because the word is unnecessary if all the amendment had to do was “Congress shall pass no law establishing a religion.” Since this is clearly not the text, and, as I am sure you are well aware, the canons of interpretation do not look fondly on excising words, your reading must be incorrect. “respecting” clearly broadens the amendment from just a ban of an establishment of a religion to something more. Worst case scenario for me, the language is ambiguous, and therefore, if we’re gonna do an originalist or original intent analysis, we gotta check what the Framers thought.

Unfortunately for you, the Framers come squarely on my side. Madison’s Remonstrance occurred in 1785, before ratification of either the Constitution or the Bill of Rights. Jefferson’s Statute on Religious Freedom was passed (thru the skillful work of Madison) in 1786, once again before the Constitution and the BOR (this statute was one of only three things Jefferson asked to be remembered for on his tombstone – the others being founding UVA and author of the Declaration of Independence. This was not some “personal stance” of Jefferson’s, both him and Madison felt it was crucial to the health of the republic to keep church and state separate. And of course, it was about giving tax dollars to religious institutions.)

While it is true that Madison had a more expansive personal view of separating church and state which he expressed after the Constitution was drafted, he sold the Establishment Clause to the other drafters as a prohibition of establishing a state church which would be preeminent over other churches.

During the recorded debates among the drafters of the Constitution, James Madison suggested that the word "national" be inserted before religion in the Establishment Clause to clarify its purpose but the other drafters did not think it necessary.

Madison summarized the Establishment Clause in this way:

Congress should not establish a religion and enforce the legal observation of it by law, nor compel men to worship God in any manner contary to their conscience, or that one sect might obtain a pre-eminence, or two combined together, and establish a religion to which they would compel others to conform (Annals of Congress, Sat Aug 15th, 1789 pages 730 - 731).

None of the recorded debates among the drafters of the Constitution mentions a complete separation of church and state.

Nor was the Establishment Clause sold to the ratifying state legislators as requiring a complete separation of church and state.

After the enactment of the Constitution, Congress did not think itself limited by the Establishment Clause from acting on religious matters. The same First Congress which drafted the Bill of Rights also opened its legislative session with a prayer and voted to appropriate government funds to establish Christian missions in Indian territory.

Your and the Court's cherry picking of the personal views of Madison and Jefferson (who was not even involved in the enactment of the Constitution) shows the hazards that original intent can be used unscrupulously to reach ends which are contrary to the plain meaning of the constitutional text.

As I demonstrate above, it is your reading that eliminates words in the plain text. I went and read the debate you are talking about. (its actually on pages 757-759). Carroll thought “the rights of conscience, are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand.” Sherman thought the limited government of the federal government did not allow any authority whatsoever to make religious establishments, so the amendment was unnecessary. Gerry thought it should read “no doctrine shall be established.” Sylvester thought it may ban religion.

Most importantly, this is not the debate on the final form of the amendment. The amendment they were debating was “no religion shall be established by law, nor shall the equal rights of conscience be infringed.” Then Madison says what he thinks is means, as you stated. I agree with him – the language debated at that point says that and only that. However, this further bolsters my point – “respecting” was not added in yet! The proposed amendment in this debate reads as you want to read the real First. This whole point you bring up undercuts your argument – the amendment you want was later rejected, and “respecting” added in. Madison is not interpreting the final form of the amendment, just a preliminary one.

BD: Establishment is the act of forming an organization or, in this case, a state religion. The Establishment Clause text nowhere calls for a broader separation of church and state in all matters.

The clause states “Congress shall pass no law respecting an establishment of religion.” The preposition “of” is used instead of “a” because of the general aspect of the clause. Your reading reads out the “of” and reads in “a,” making the clause specify no establishment of a national religion. By using “of,” the clause no longer discusses the establishment of a single religious sect, but instead, “establishment of religion” must be read together.

To start, let me thank you for your thoughtful response which actually addresses, rather than sidesteps, my textual argument.

I do not see how the use of "of" rather than "a" changes the meaning of "establishment." Establishment means the creation of an organization or thing. In this case, the organization or thing being established is "religion." Religion established by the state is by definition a state religion.

“respecting” is specifically chosen also – early proposals also had “touching” as the word – to create a broad nature of the amendment.

"Respecting" simply means in regard to. Thus, the Establishment Clause merely prohibits Congress from passing any laws in regard to establishment of religion. I agree that "respecting" is a broad term, but its prohibition is still limited to the controlling phrase "establishment of religion."

In order to arrive at their various holdings that the government cannot become overly entangled in religion, the Courts had to write out the term establishment from the Establishment Clause to have it read "Congress shall make no law respecting...religion." That is the only way you can textually sidestep the controlling term on the Establishment Clause.

This was not some “personal stance” of Jefferson’s, both him and Madison felt it was crucial to the health of the republic to keep church and state separate."

The fact that Jefferson and Madison may have strongly believed that a wall between church and state was crucial to the health of the Republic does not remove this belief from the realm of personal opinion. This was not the argument being made by Madison or anyone else among the drafters. Madison spoke of stopping the government from adopting a religion and forcing citizens of other faiths to conform to that religion. He did not change this argument as the Establishment Clause developed and added the word "respecting."

We need not give Jefferson's personal opinion on the matter any more attention than any other citizen, including you or I.

Nonresponsive to my complaint about your original point (but nonetheless another claim that has been disputed here).

But you snipped this part:

[Arne]: What did he say:

"Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for is faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church and State."

Why? Was ol' Tommy simply mistaken here, "Bart", and you're just doing a public service to correct him?

an is an article. it can only modify a noun. "establishment" is therefore a noun, and "of religion" is a preposition modifying "establishment." "an establishment of religion" is the same as a "religious establishment." Therefore, Congress shall make no law "respecting a religious establishment." This means, as the founders understood it to mean, the national government was completely barred from making any laws dealing with religious institutions.

This reading is supported from the time, by the man that matters most, when he, in 1811, vetoed a bill from the House on February 21, 1811

Let's see what J-Mad says:

Having examined and considered the bill entitled "An Act incorporating the Protestant Episcopal Church in the town of Alexander, in the District of Columbia," I now return the bill to the House of Representatives, in which it originated, with the following objections:

Because the bill exceeds the rightful authority to which governments are limited by the essential distinction between civil and religious functions, and violates in particular the article of the Constitution of the United States which declares 'Congress shall make no law respecting a religious establishment.'***

The bill enacts into and establishes by law sundry rules and proceedings relative purely to the organization and policy of the church incorporated, and comprehending even the election and removal of the minister of the same, so that no change could be made therein by the particular society or by the general church of which it is a member, and whose authority it recognizes. This particular church, therefore, would so far be a religious establishment by law, a legal force and sanction being given to certain articles in its constitution and administration. Nor can it be considered that the articles thus established are to be taken as the descriptive criteria only of the corporate identity of the society, inasmuch as this identity must depend on other characteristics, as the regulations established are in general unessential and alterable according to the principles and canons by which churches of the denomination govern themselves, and as the injunctions and prohibitions contained in the regulations would be enforced by the penal consequences applicable to the violation of them according to the local law.

Because the bill vests in the said incorporated church an authority to provide for the support of the poor and the education of poor children of the same, an authority which, being altogether superfluous if the provision is to be the result of pious charity, would be a precedent for giving to religious societies as such a legal agency in carrying into effect a public and civil duty.

*** Madison quotes the Establishment Clause incorrectly. This is suggestive - Constitutional scholar Leonard Levy comments on this misquoting as follows: "His [Madison's] use of "religious establishment" instead of "establishment of religion" shows that he thought of the clause in the First Amendment as prohibiting Congress from making any law touching or "respecting" religious institutions or religions; [The Establishment Clause, p. 119].

The Founders, and indeed the key framer of both the Constitution and the First amendment read the text this way - really, really broad, and not limited to sanction of an official religion. Further, the rules of English dictate this result. The plain text either favors me, or is ambiguous. Either way, the Founders intent was as I have stated. While apparently there are some who think your opinion is superior to J-Mad or TJ's, I must humbly side with the Founders.

From my position as a lay person, the Morse decision seems as absurd as the sign from which it arose.

In the Roberts opinion the superintendent is quoted claiming that Frederick was unable or "unwilling to express any other credible meaning for the phrase" (p. 3). However, Frederick does in fact state that "the words were just nonsense meant to attract television cameras" (p. 6). Roberts and the rest simple side with the Principal Morse's interpretation, without providing any solid argument for doing so.

The Roberts opinion goes no further than saying that it is possible to construe the meaning as endorsing illegal drug use. Worse yet, in order to make the argument that it is possible, Roberts resorts to accepting Principal Morse's insertions, in square brackets, of words that were NOT even in the banner. Roberts accepts Morse's "[take] bong hits" and "bong hits [are a good thing]" (p. 7). This is utterly ridiculous. Why not "[don't take] bong hits" or "bong hits [are bad]" or perhaps "bong hits [should be allowed for cancer sufferers]". If one is allowed to argue from non-existent words that a sign promotes illegal drug use, or anything else, we are going to enter a very weird age of law making.

Notice by the way, that once the principal's words are read in the full phrase, the sign becomes even more absurd, "bong hits [are a good thing] for Jesus." We can come up with any number of possible interpretations for what this means, especially if we grant the insertion of even more words, but this is one of the reasons that the statement is absurd.

Something else that is extremely odd is that Roberts' decision makes no reference to the phrase "for Jesus." If Principal Morse remarked on the significance of this phrase, it was not taken into consideration. Clearly, this adds to the plausibility that the student, Frederick, is being completely honest that the banner was meant to be an absurd publicity stunt.

It is my understanding that no issue arises if the banner does not advocate something that is harmful to the students. Notice that an absurd sign is not a danger (unless distracting from something, of course), and the way that this sign was construed to be a danger was by reading non-existent words into the sign, and then ignoring the intentions of the author.

I cannot even guess why the court proceeded the way it did.

On a slightly different note, regarding what kind of decision Morse was. I am sure that the supporters of the Morse decision (see above) would not be too happy if a pincipal tore down a student sign that said "Bill Clinton smokes marijuana" or "Clinton smoked marijuana". We can, in an analogous fashion as the Roberts decision, interpret that slogan as advocating drug use.

Another issue that should concern us is the fact that it is not clear that marijuana use (however off-putting) is directly harmful. Imagine a case where a students banner was torn down because it said, "Don't believe the lies about global warming." One could argue that that sign presents a danger to the other students. None of us would take this seriously, either because we think global warming is hoax, or because it isn't clear if global warming is a direct danger to the students.

For the record, unprotected speech does not become magically protected by simply being "absurd" -- by definition, all unprotected speech IS absurd -- it is "absurd" to falsely yell FIRE in a crowded theater as well. In addition, it matters not whether marijuana use is "directly harmful" as long as it is AGAINST THE LAW!!!

"The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Schenck v. United States

Schenck was overruled by Brandenburg v. Ohio, which ruled that speech could only be banned when it was directed to and likely to incite imminent lawless action (e.g. a riot).

Yelling "Fire" is not illegal per se, it is only illegal when it directed to and likely to result in imminent lawless activity.

Unless you can seriously say "bong hits for Jesus" was about to incite imminent lawless activity, it simply cannot be regulated. The Court was wrong. really wrong.

At least I included "falsely" which most people forget about -- of course, I was referring to yelling "fire" that would cause a riot, and I readily admit that even some protected speech is also "absurd" -- but, I'd like to see an example of UNPROTECTED speech that is not "absurd"?

I suggest to Charles that he read my comment again. I did not claim that what Charles calls "unprotected speech" becomes "protected" because it is absurd. To repeat briefly, there is a strong argument Frederick's banner did not advocate drug use, in the first place. Notice again that the argument that it did constitute such an advocation was based on reading absent words into the banner (see my sole comment above).

That was clear from my comment, and nothing I said indicates that absurd speech is protected by virtue of being absurd.

Charles statement that unprotected speech is absurd by definition is most likely a hasty claim, and it seems to me not worth commenting on.

Finally, that marijuana use is illegal in Alaska, is beside the point if Frederick did not advocate its use. Further, I will assume Charles is restricting the issue of legality to the issues of Morse. It isn't the case that advocating something illegal is of necessity speech that can legitimately be censored. Even in Morse, it isn't clear that the illegality of marijuana use is a big factor, let alone the main issue (Charles does not suggest it is the main issue). Instead, as I suggested in my previous comment, it is that drug abuse is dangerous. At least, pages 11 to 15, the end of the decision, discuss the danger of drug abuse, and the need for school administrators to have the means to combat it, including censorship. Roberts concluded that "that failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers" (p. 15). A page before, Roberts writes, "The danger here is far more serious and palpable. The particular concern to prevent student drug abuse at issue here, embodied in established school policy, App. 92–95; App. to Pet. for Cert. 53a, extends well beyond an abstract desire to avoid controversy," this to differentiate the case at hand from Tinker. There is a long discussion of contention that "Drug abuse can cause severe and permanent damage to the health and well-being of young people . . ." (p. 11), in the final third of the opinion. The issue of legality is raised only with the phrase "illegal drugs". Nothing rests just upon the legality of Marijuana.

Essentially, Charles has not responded to my original comment, although he does refer to it. He seems to be confused about one of the issues in Morse, because he assumes that Frederick's banner advocated drug use, and then assumes that immediately gives it unprotected status. In fact, both of these points are argued and discussed, and Roberts opinion takes care (as I argued before, insufficient care) to establish these claims. The issues he raised are beside the point, and his declaration regarding the definition of "unprotected speech" is dubious at best.

To repeat briefly, there is a strong argument Frederick's banner did not advocate drug use, in the first place.

And, what is that: Frederick just got back from the Holy Land archeological site and was simply trying to inform people about his discovery that Jesus Christ actually smoked pot?!

Notice again that the argument that it did constitute such an advocation was based on reading absent words into the banner (see my sole comment above).

Not at all -- I read the words: "Bong Hits for Jesus" as advocating illegal drug use -- that it could have other hypothetical meanings is almost irrelevant.

Charles statement that unprotected speech is absurd by definition is most likely a hasty claim, and it seems to me not worth commenting on.

At least you know how I felt then.

Charles has not responded to my original comment . . .

Please let me know if there's something specific you want answered. I think I've made myself clear, and I certainly agree with the Court that "The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers." I like Roberts "dismantling", "throwing bombs" (or BONGS, if you prefer) or wahtever else you want to label it.

Mr DePalma- I must disagree with your textual reading. the clause states:

"Congress shall make no law respecting an establishment of religion."

an is an article. it can only modify a noun. "establishment" is therefore a noun, and "of religion" is a preposition modifying "establishment." "an establishment of religion" is the same as a "religious establishment." Therefore, Congress shall make no law "respecting a religious establishment." This means, as the founders understood it to mean, the national government was completely barred from making any laws dealing with religious institutions.

This reading is supported from the time, by the man that matters most, when he, in 1811, vetoed a bill from the House on February 21, 1811... [In this veto,] Madison quotes the Establishment Clause incorrectly. This is suggestive - Constitutional scholar Leonard Levy comments on this misquoting as follows: "His [Madison's] use of "religious establishment" instead of "establishment of religion" shows that he thought of the clause in the First Amendment as prohibiting Congress from making any law touching or "respecting" religious institutions or religions; [The Establishment Clause, p. 119].

I was considering bringing this point up in support of my argument that Mr. Madison's later position advancing a stricter separation of church and state is both contrary to the language of the actual Establishment Clause and to the interpretation of that provision which he sold to other drafters during the constitutional convention.

Mr. Madison's veto statement is no different from one of Mr. Bush's signing statements advancing his interpretations of his Article II powers. While Bush and Madison are free to advance their own personal interpretations of the Constitution, these opinions bear no more weight than those of you and I.

While apparently there are some who think your opinion is superior to J-Mad or TJ's, I must humbly side with the Founders.

I had a good chuckle upon reading charles' post concerning the relative trustworthiness of myself and Mr. Jefferson. While I might start purring if I keep getting stroked that way, I am going to be a wet blanket and observe that opinions are irrelevant.

Rather, we need to stick with the objective facts. The Establishment Clause says what it says and the drafters' arguments during the debates, including that of Mr. Madison, are on the record. For the reasons I have advanced before, I would rest my case that the Establishment Clause requires and was meant to require only that Congress may not establish a state religion.

And, I would agree that the Establishment Clause requires, and was meant to require, only that Congress may not establish a state religion. I think a good argument could be made that Christianity is allowed to be favored, just no official adoption of a single DENOMINATION within Christianity is what the majority intended.

Looking at the first few years of Scalia and Thomas votes / opinions / dissents, I think Roberts and Alito are "in the mold" and coming along just fine, thank you very much. Great victories today!!

# posted by Charles : 2:15 PM

This is doubtless over your head, but I'll try it anyway.

Thomas (about "states' rights" even though that view has twice been defeated) is the first "justice" to interpret the Constitution through the views of the anti-Federalists. The anti-Federalists were opposed to the ratification of the Constitution. In addition, the anti-Federalists lost that debate.

That means Thomas cannot but be opposed to the Constitution, though he sits on the court charged not with nullifying and overturning the Constitution but rather in elucidating it.

Scalia is another who claims to be about "states' rights" -- except when it comes to such lawlessness as Bush[it] v. Gore.

And Roberts and Alito, unsurprisingly, are both shown to be 100 per cent pro-corporate. You do know, don't you, that the business/corporate sector of our society is a minority? -- while you present as being for majority rule (so long as the avowed majority agrees with you).

As well, Scalia and Thomas are members of the extremist "Federalist Society" -- which is exactly opposite that they claim: "states rights" -- anti-Federalist. And, though Roberts, during his confirmation hearings had a perfect memory for every detail of every moment of his life, somehow couldn't seem to remember whether he was/is a member of the "Federalist Society".

And where, pray tell, is the "Federalist Society" on the political spectrum? It's members comfortably associate with the Neo-Confederates -- who want to re-establish the Confederacy, the core purpose of which was the preservation and perpetuation as permanent slavery -- and like KKK groups. Those are the stench you cheer on -- which should be okay with you, so long as you are white (and not Catholic, or Jewish).

(In case you haven't noticed, I'm a "bomb thrower" -- although I started my career out, once upon a time, as a gradual "dismantler" too -- I grow less and less patient each and every day)

I think you misspelled "eedjit" (and perhaps "misdandler"). See below.

For the record, unprotected speech does not become magically protected by simply being "absurd" ...

Strangely enough, no one here has made such a claim. Why don't you talk to the docs about titrating the Haldol up a notch?

-- by definition, all unprotected speech IS absurd ...

No.

... -- it is "absurd" to falsely yell FIRE in a crowded theater as well....

No.

But your logical facilities are lacking. Unlike the contrapositive, the converse does not have the same truth value as the original statement. Thus, even if your claim ("IF unprotected THEN absurd") was true (which it isn't), the converse ("IF absurd THEN unprotected") would not necessarily be true.

... In addition, it matters not whether marijuana use is "directly harmful" as long as it is AGAINST THE LAW!!!

And just what does that have to do with the price of tea in Sri Lanka?

I'd say that, rather than "throwing bombs" here, you're more accurately described as letting go petards.

And, I would agree that the Establishment Clause requires, and was meant to require, only that Congress may not establish a state religion. I think a good argument could be made that Christianity is allowed to be favored, just no official adoption of a single DENOMINATION within Christianity is what the majority intended.

# posted by Charles : 4:12 PM

You claim to be a Christian. Lest we overlook the fact as you do, there are rules which apply to being a Christian. Most notable are the Ten Commandments (not "Requests"), one of which is "Thou shalt not lie." Yet you lie in favor of being a "Christian" by leaving out the half of the Establishment Clause you hate; this is the full Clause:

"Congress shall make no law respecting [supporting] an establishment of religion, or prohibiting the free [of either gov't support or opposition] exercise thereof; . . . .

When Jefferson proposed his "religious freedom" law in VA, he anguished that it would allow (legalize) Catholics ("Papists") to exercise their "religion". He did it anyway.

Several first state constituions (variously adopted during 1776-77) expressly prohibit one citizen being required to pay taxes to support someone else's "religion". And two of them -- GA and NC -- prohibit active clergy holding elective office. And one of them (GA) protects "religious" "preaching" so long as not "seditious," in which case it could be prosecuted as essentially treason.

In the debates of that which became the Second Amendment, an apparent reason the "no person religiously scrupulous shall be compelled to bear arms" clause was voted down was the view expressed by one of the delegates that "religion" would fade away.

Nearly/all first state constitutions required those elected to swear an oath to "God," and that the so-called Old and New Testaments were "divinely inspired". Nearly/all were quickly amended to allow an oath or affirmation leaving out "God" and the rest of the religiohypothical. After all, not all colonists were, from the very biginnings of the colonies, were Christian. Nor were all those who fought in the "revolution". Some were, as examples, Jews. And then there were the Quakers . . .

Thus the US Constitution prohibits "religious" tests. "God" doesn't appear in that Constitution; nor does the word "Christian".

As ever, you don't know what you're talking about; and as ever, you are a bigot against all views -- including clear history and text -- not yours.

At least I included "falsely" which most people forget about -- of course, I was referring to yelling "fire" that would cause a riot, and I readily admit that even some protected speech is also "absurd" -- but, I'd like to see an example of UNPROTECTED speech that is not "absurd"?

# posted by Charles : 3:21 PM

The First Amendment exists to protect unpopular speech (whether it is "absurd" is a value judgment), popular speech needing no protection (even when the popular speech is both fact-free and absurd).

Again, no "personal attacks" because you guys think you've proven I'm a "knee-jerk" lying "eedjit", right? Oh, for the record, the words "our Lord" (in reference to none other than JESUS CHRIST) are indeed found right in the original Constitution. Look it up yourself, if you think I'm "lying".

[Charles]: The "bong hits 4 Jesus" case is a conservative win because the First Amendment was never intended to be absolute -- especially not for school students who are there to learn rather than advocate illegal drug use -- another smack-down to the 9th Circuit ...

'Nuff said. Some folks describe their positions; other simply demonstrate the truth of what others have said.

Cheers,

# posted by Arne Langsetmo : 5:18 PM

Odd: I've never read anything whatsoever about drugs in anything written by the Founders and Framers (including in the Constitution). Closest I've seen is "hemp," but that was for rope and ship sails.

I immediately viewed, on first hearing, the "Bong Hits 4 Jesus" banner was a satire of "religion" -- a combining of an anathema to the fakely "religious"* with the latter's favorite wishing well. I haven't seen anything to persuade me it was other than that. It was not an advocacy for drug use; it was a jibe at the fake Christian holier-than-thou santimony and piety which so often today substitutes for legitimate "religion".

*Note that those who have the most to say about drugs are also those who know the least about them.

I've never killed multiple humans and eaten them either -- I guess I can't comment on Jeffery Dalhmer either -- you really are hostile, JNagarya, why is that? It must really PISS YOU OFF that every President since Washington has added "So Help Me GOD" to his Oath of Office. Just the mere mention of His Name gets you in a tizzy!

Well, I'm not calling for the repeal of the 13th and 14th Amendments -- if that's what you people think "conservative" is -- I am also NOT a libertarian.

# posted by Charles : 5:30 PM

Right. Being opposed to all "race-based" laws, you're for repealing the 13th, 14th, and 15th Amendments. Can't get back to "original intent" (or whatever it's called today) without restoring slavery.

You're neither genuinely conservative nor Christian; you're about putting minorities and women back into their places, where they "belong". It was so much better -- and simpler -- in the "old days" when there were no legal impediments protecting to acting on one's juvenile bigotries against those not you.

Thomas (about "states' rights" even though that view has twice been defeated) is the first "justice" to interpret the Constitution through the views of the anti-Federalists.

Not quite. Most of Thomas' views (and mine) were shared widely prior to the FDR Court.

The anti-Federalists were opposed to the ratification of the Constitution. In addition, the anti-Federalists lost that debate.

Also not quite. The so called "anti-federalists" won the debate over limited federal power when the Federalists agreed to include the 10th Amendment expressly reserving all powers not enumerated in the Constitution to the States and the People.

That means Thomas cannot but be opposed to the Constitution, though he sits on the court charged not with nullifying and overturning the Constitution but rather in elucidating it.

Thomas has the text of the actual Constitution on his side for most of his opinions. The left wing of the Court have prior court precedent which departed substantially from the Constitution.

As well, Scalia and Thomas are members of the extremist "Federalist Society" -- which is exactly opposite that they claim: "states rights" -- anti-Federalist.

Actually, the labels Federalists and Anti-Federalists are as much misnomers as is the label Democrats for a party which relies on undemocratic court and bureaucratic decisions to accomplish its objectives.

Federalism is the concept of a limited central government with the balance of power belonging to the states and the people. This is in stark contrast to the central government delegation of limited power to the states model of Europe. Thus, the anti-federalists were arguably the true federalists.

In this spirit, we Federalists defend the Constitution as it was written from the depredations of those who would rewrite ths compact between the People and their Government to accomplish their own political ends. Perhaps the only thing that Mr. Bush did well domestically apart from the tax rate cuts and banning partial birth abortion was to appoint Aliton and Roberts. May Bush have the opportunity to replace Stevens and Ginsburg with a couple more Federalist "bomb throwers" after their well deserved retirements this summer.

And where, pray tell, is the "Federalist Society" on the political spectrum? It's members comfortably associate with the Neo-Confederates -- who want to re-establish the Confederacy, the core purpose of which was the preservation and perpetuation as permanent slavery -- and like KKK groups. Those are the stench you cheer on -- which should be okay with you, so long as you are white (and not Catholic, or Jewish).

This diatribe will be humorous when the Court caps off this term with its Federalists reversing government racial discrimination in the schools. You forget which party has consistently supported racial discrimination in favor of its constituents since the Civil War.

"Mr. Madison's veto statement is no different from one of Mr. Bush's signing statements advancing his interpretations of his Article II powers. While Bush and Madison are free to advance their own personal interpretations of the Constitution, these opinions bear no more weight than those of you and I."

Except, of course, Madison is the one who wrote the First Amendment. His opinion of its meaning is therefore very relevant. Plus, for the reasons listed above, the debate you reference is not a debate on the actual language proposed to (and ratified by) the states, and is therefore irrelevant.

Further, you did not address the plain text of the amendment. "establishment" is not a verb in the amendment, and instead is a clause referring to religious institutions. you have not cited anyone commenting on the final form to have a different reading. "an" is an indefinite article, which modifies a noun when the noun refers to any member of a group. in this case any of the "establishment[s] of religion."

your reading still requires either:

1) substitution of the definite article "the" for "an", and adding in an indefinite "a" after "of"

2)the indefinite article "a" added after the preposition "of".

3) the conjugation of the noun "establishment" for the gerund "establishing", and reading out "respecting an" and adding an indefinite "a" for the preposition "of"

that way, you can have:Congress shall make no law:1) respecting the establishment of a religion 2) respecting an establishment of a religion3) establishing a religion

none of these are the actual language. The problem is the clause's use of "religion." because "of religion" is a adjective clause modifying "establishment," it describes what kind of establishments Congress can make no law respecting. You need "religion" to be its own noun, as in "a religion." But since the only proper way to read the clause is to read "an establishment of religion" as one object, your reading is incorrect.

The plain text does not support your contention. please explain a construction that grammatically supports your assertion, and try and find some actual debate on the actual first amendment, and not debate on a early version. if you choose to rest your case only on the facts you have presented above, I will ask for and win a directed verdict.

Charles - no, Christianity cannot be favored. Madison spoke on this also. also look up the Treaty of Tripoli for the Framers viewpoint on this.

I'm not calling for the repeal of the 13th, 14th, 15th Amendments, or any combination thereof (sorry I left that one out since it allowed you to level yet another unwarranted personal attack against me). Perhaps it would be better if we simply agreed to disagree and left each other alone?

nerpzilla:

I will indeed look up how many of the original signers to the Declaration of Independence also signed the Treaty of Tripoli.

The peace treaty was signed at Tripoli on November 4, 1796 and at Algiers (for a third-party guarantee) on January 3, 1797 by Joel Barlow (not a signatory to to Declaration of Independence), the United States consul-general to the Barbary states of Algiers, Tripoli and Tunis. Now, of course, then-President John Adams signed the Declaration of Independence but Secretary of State Timonthy Pickering as NOT a signatory to the Declaration of Independence. I need to still double-check on the 23 Senators who unanimously ratified the treaty on June 10, 1797. Unless you happen to know the number who were signatories to the Declaration of Independence.

Of course, the treaty was broken in 1801 by the Pasha of Tripoli and renegotiated in 1805 after the First Barbary War, and the later version did not include Article 11.

Federalism is the concept of a limited central government with the balance of power belonging to the states and the people. This is in stark contrast to the central government delegation of limited power to the states model of Europe. Thus, the anti-federalists were arguably the true federalists.

Ummm, no, perhaps best described as "confederalism". The fight to get rid of the weak and ineffective Articles of Confederation and to institute the stronger federal gummint was that of the Federalists. The anti-Federalists resisted this. The stronger federal gummint ... and the Constitution creating it that was proposed by the Federalists ... won out.

Charles - actually, to be accurate, you want to compare how many senators were present at the time of the Congress sending the proposed First Amendment to the States, and how many were present at the ratification of the treaty. The signers of the Declaration of Independence didn't even have the Articles of Confederation done yet, not to mention the Constitution or the BOR.

The answer is four, I believe. The Treaty passed unanimously, after being read and distributed to all the members. If the four who had been present at the Senate's two-thirds vote on the First had disagreed with Article 11 of the Treaty, they didn't speak up. As far a signers to the Constitution, there were two, (again I believe), and Declaration Signers, only Richard Stockton was there, and he did not object.

In this spirit, we Federalists defend the Constitution as it was written from the depredations of yada-yada-yada....

But the "Bartian" "Federalists" (in fact, the anti-Federalists) lost that debate. "Bart" thinks he can refight the debate and win by simply labeling himself as the Only True Federalist now. Sorry, "Bart", but if I legally change my name to Dubya The Deciderator-In-Chief, I still don't gte to be preznit.

The starting point for ANY debate on the "Framers" or "Founding Fathers" in general has to start with the Declaration of Independence (in fact, I'm giving you the advantage by starting there since Jefferson was out of the country when the Constitution was drafted). So far, it's not looking that good for your argument that the Treaty of Tripoli gives us the "Framers" viewpoint on this question:

The Declaration of Independence, while a wonderful document that encapsulates many principles of the republic, is not a legally binding document. When one speaks of the Framers, one means the signatories to the Constitution, not the Declaration. The Declaration does not contain any reference to a federal government or its structure, and certainly nothing about the establishment clause. I didn't check about father/son stuff, good catch. Further, Adams, Jefferson, Washington, Madison, Mason, Paine, Henry, Franklin, and Wilson were probably the theoretical leaders of the Republic, and each of them served in different ways.

When trying to determine original intent, it doesn't matter what the Declarations signers thought, because, as I said, the Constitution did not even exist at the time of the Declaration. Further, the First Amendment did not exist at the time of the signing of the Constitution.

Your analysis is completely wrong. Plus, it looks over the fact that John Adams, who was part of the three member committee that actually wrote the Declaration (with TJ), was the one who sent the Treaty to the Senate.

Even on your (wrong) metric for determining the Framers agreement with Article 11, I have one (Adams) to your zero protesting it.

The four are: Philip John Schuyler from NY, James Gunn of GA, John Henry of MD, and John Langdon of NH. I think that's it. its possible Theodore Foster of RI was there, but i think he did not take his seat in time for the debates on the First Amendment

Well, I completely disagree that one disregards the Declaration of Independence when one speaks of the "Framers" or even, more generally, our "Founding Fathers" -- as I already pointed out, if we only use the Constitution, we exclude Jefferson simply because he was in France -- even I would say that's unduly restrictive. The First Amendment is wonderfully illustrative of the UNALIENABLE RIGHTS endowed by our Creator, no?

Moving on to the U.S. Constitution, John Langdon indeed signed, and so did William Blount. But, that's only TWO. Are you claiming that Philip Schuyler, James Gunn, or John Henry signed the Constitution?

Charles has evidently failed to read my first post. I can only suggest that he read it again.

Despite my quotation from the opinion, and access to a copy of the opinion, Charles claims Roberts' opinion does not rely on words absent from the Frederick's sign. Please read the opinion, and my first comment. Roberts accepts Principal Morse's act of inserting the words "take" and "are a good thing" into text of the sign.

To be clear, Roberts and Morse hypothesize that the sign might mean bong hits are a good thing for Jesus. This is in the opinion. They ignore that there are other interpretations AND ignore the stated intentions of the author of the sign. No argument is provided to show that other interpretations of the sign are invalid.

Charles personal feelings about the meaning of the sign constitute evidence for one possible interpretation of the text in question, but they do not make all other possible meanings irrelevant.

I hope folks will read the opinion, if not my comment above.

Charles statement that unprotected speech is absurd by definition is most likely a hasty claim, and it seems to me not worth commenting on.

As I noted before, in my second comment, Charles referenced my comment but did not address the substance of it. He then proceeded to contradict things I didn't say. In his last response to my second comment he again ignores the substance of my comments, and introduces the weird "argument" that since he knows what Frederick's sign really means (more that even the author of the sign) that no one else's opinion matter. His conclusion contains praise for Roberts, which is also out of place to the extent he was trying to respond to my comments.

To be clear, I'm not trying to win some rhetorical debate, and have no desire for anyone to answer specific points in my comments. However, for the sake of continuity, Charles should either make no reference to what I wrote or address the comments without distortions and inaccuracies.

Aha!! After reviewing your 6:01 p.m. post, it seems you were referring to four Senators who "were present at the time of the Congress sending the proposed First Amendment to the States" -- I fail to see why you are including such latecomers in your definition of "Framers" our "Founding Fathers" -- how far do you cut-off that group?

Back to Peter (although I have to finish my homework assignment from nerpzilla first):

I will try yet again to review your post, but i will at least note for now that I never claimed that "Roberts' opinion does not rely on words absent from the Frederick's sign." In fact, I don't think the facts are clear that is was HIS sign at all -- Frederick simply showed up late and joined in on the sign original unfurled by others -- Frederick was the only one who refused to stop displaying the sign.

I should say "Thank-You" for responding. I'm sure I come off sounding a bit rude, and I hope everyone will believe me that that is not my intention.

In your post you quoted me, and then contradicted what I wrote,

[me] "Notice again that the argument that it did constitute such an advocation was based on reading absent words into the banner (see my sole comment above)."

[you=Charles] "Not at all -- I read the words: "Bong Hits for Jesus" as advocating illegal drug use -- that it could have other hypothetical meanings is almost irrelevant."

I interpreted this to mean that you thought I was incorrect that Roberts' opinion relied on an interpretation of the sign which involved reading absent words, namely "take" and "are a good thing". Hence, I took this to mean that you claimed Roberts only relied on the sign text, and not Morse's statement that the sign could be read as "[take] bong hits."

I haven't called you a liar, though I reserve the right, given evidence for doing so, as it is my bview that you're a history-illiterate dupe who votes against his own interests but doesn't know it.

"Oh, for the record, the words "our Lord" (in reference to none other than JESUS CHRIST) are indeed found right in the original Constitution. Look it up yourself, if you think I'm "lying"."

How about providing us the actual language in which you falsely claim those words appear in the Constitution, liar.

# posted by Charles : 5:03 PM

"The full quote (from another thread): "despicable knee-jerk airhead" -- gee, I wonder how I could have ever mistaken that as an ad hominem attack."

As I made clear in that post: it is a personal attack when not true; it is not a personal attack when it is a statement of fact. In your case, it is not a personal attack. Go back and read my ripping for you a new one (to add to your growing collection) concerning the history of racism, and the purposes of anti-discrimination laws, about which you display the profoundest of ignorance -- and your inability to respond to those facts, let alone refute them, thus substitute therefor the falsehood that I was instead engaging in personal attack.

It is abundantly clear that history lesson was not a personal attack. But, as I said in follow-up, your taking that lesson personally, as if I had called you a racist, was deservedly taken personally because you are. Regardless how much a dullard you are about that obvious fact.

Thomas (about "states' rights" even though that view has twice been defeated) is the first "justice" to interpret the Constitution through the views of the anti-Federalists."

"Not quite. Most of Thomas' views (and mine) were shared widely prior to the FDR Court."

Actually not, as Thomas' views were, as noted, twice defeated: (1) the Constitution was ratificied, and (2) the "states' rights" South lost the Civil War.

"The anti-Federalists were opposed to the ratification of the Constitution. In addition, the anti-Federalists lost that debate."

"Also not quite. The so called "anti-federalists" won the debate over limited federal power when the Federalists agreed to include the 10th Amendment expressly reserving all powers not enumerated in the Constitution to the States and the People."

Not-so-by-the-way: there were four authors of The Federalist. I know that fact because I'm way beyond you and your ilk on this issue (also).

The first state ratifying convention proposing amendments to the Constitution was MA-Bay. Those proposed amendments included that which became the 10th. Those proposed amendments, also, were authored by conservative merchant and prominent Federalist Theophilus Parsons. Continued below.

"That means Thomas cannot but be opposed to the Constitution, though he sits on the court charged not with nullifying and overturning the Constitution but rather in elucidating it."

"Thomas has the text of the actual Constitution on his side for most of his opinions."

Again: Thomas is the first "justice" in history to interpret the Constitution through the views of the ANTI-Federalists. The ANTI-Federalists opposed ratification of the Constitution (among their "reasons" bewing that it didn't include a Bill of Rights). They lost that argument: it was ratified.

The next effort to defeat the Constitution was the Civil War. That "states' rights" effort was also lost.

"The left wing of the Court have prior court precedent which departed substantially from the Constitution."

The "left wing" of the court, ass, are mostly stuanch rock-ribbed New England conservative Republicans. What is it about the baby states -- such as CO -- that causes them to believe they are capabale of telling the Original Thirteen "how to do it"? Jealousy?

"As well, Scalia and Thomas are members of the extremist "Federalist Society" -- which is exactly opposite that they claim: "states rights" -- anti-Federalist."

"Actually, the labels Federalists and Anti-Federalists are as much misnomers as is the label Democrats for a party which relies on undemocratic court and bureaucratic decisions to accomplish its objectives."

Except that I don't play politics with those terms; "we" leave that to the anti-democratic revisionist reactionaries like you to do that.

"Federalism is the concept of a limited central government with the balance of power belonging to the states and the people."

First of all, The Federalist is an extra-legislative non-law document written by an extreeme minority of the delegates with the declared bias of selling the Constitution. Second, nowhere in it do they speak of "small gov't" or any of the other anti-Constitutional crackpottery poisoning our politicial discourse. Rather, they spoke if a strong central Federal gov't; and included in the Constitution is the means to suppress insurrections -- whether by private armed groups or state gov'ts. So the "balance of power" is not with "We the people" and the states; it is with the Union.

"This is in stark contrast to the central government delegation of limited power to the states model of Europe. Thus, the anti-federalists were arguably the true federalists."

What was that about absurd nonsense not being protected speech? The anti-Federalist lost every battle: the Constitution was ratified; the South lost the Civil War; the initiative for a Bill of Rights -- and it contents -- was co-opted by Federalist James Madison.

"In this spirit, we Federalists defend the Constitution as it was written from the depredations of those who would rewrite ths compact between the People and their Government to accomplish their own political ends."

The supremacy clause makes clear that "states' rights" which conflict with the Federal Constitution are unconstitutional. Balance of power to Federal gov't, 1; to the states 2. "All men are created equal"/14th Amendment means protecting the rights of all, equally before the law, even if that requires use of Federal power. Thus the labor protections and civil rights acts which your ilk so hate.

"Perhaps the only thing that Mr. Bush did well domestically apart from the tax rate cuts and banning partial birth abortion was to appoint Aliton and Roberts."

You'll tell any lie. The tax cuts were to the top 1 per cent; and the "partial birth abortion" ban is a lie based upon an infiniteimal number of a necessary medical procedure. But let's join Roberts and Alito and the like in ignoring the actual facts in order to make up whatever it takes to arrive at the prefigured conclusion. Let's pretend that isn't activist judging.

"May Bush have the opportunity to replace Stevens and Ginsburg with a couple more Federalist "bomb throwers" after their well deserved retirements this summer."

Alito's development of the "Unitary Executive" theory is a destruction of the Federalist system. Keep up the lying, anti-American.

"And where, pray tell, is the "Federalist Society" on the political spectrum? It's members comfortably associate with the Neo-Confederates -- who want to re-establish the Confederacy, the core purpose of which was the preservation and perpetuation as permanent slavery -- and like KKK groups. Those are the stench you cheer on -- which should be okay with you, so long as you are white (and not Catholic, or Jewish)."

"This diatribe will be humorous when the Court caps off this term with its Federalists reversing government racial discrimination in the schools. You forget which party has consistently supported racial discrimination in favor of its constituents since the Civil War."

That diatribe is a statement of the facts. As for which party has consistently supported racism since the actual effort to implement civil rights protections for all: Republicans. Read up on Nixon's "Southern Strategy" to pick up all those Southern Democrats who quit the Democratic party once it showed it was serious about protecting the civil rights of not only racists and white supremacists. Thus we get such as Tim Griffin, Schlozman, and von Spakovsky.

"Except, of course, Madison is the one who wrote the First Amendment. His opinion of its meaning is therefore very relevant."

Not quite the fact. First, following MA-Bay's lead, several states which subsequently ratified the Constitution included with their Notices of Ratification proposed amendments. Madison, who successfully opposed (with no real opposition) the "necessity" for a Bill of Rights during the Constitutional Convention, thereafter changed his mind. Thus, in the first Congress under the Constitution, he collated and codified those proposed amendments and submitted it to the House as a proposed Bill of Rights, where it was met with a widespread "YAWN".

Nonetheless, he successfully sheparded it through debates -- during which debates it evolved through several versions, increasingly as distinct amendments. Thus it was the first Congress which wrote the First Amendment (and the other eleven submitted to the states for ratification), not Madison. (NRA shill's will assert that Madison wrote the Bill of Rights in effort to hurriedly pass over the inconvenient "detail" that the debates of that which became the Second show the exact opposite of the NRA's lie.)

"Plus, for the reasons listed above, the debate you reference is not a debate on the actual language proposed to (and ratified by) the states, and is therefore irrelevant."

Extra-legislative materials (such as The Federalist) have no legal authority on the issue, however interesting they may be to the historian. The legislative history -- the debates -- though is relevant as primary materials and legal authority.

"Further, you did not address the plain text of the amendment. "establishment" is not a verb in the amendment, and instead is a clause referring to religious institutions. you have not cited anyone commenting on the final form to have a different reading. "an" is an indefinite article, which modifies a noun when the noun refers to any member of a group. in this case any of the "establishment[s] of religion.""

Presentism. My education in Constitutional law began with going back to the very beginnings of the colonies on this continent -- New-Plimoth being the first stable -- and consists in reading the law from there to and through ratifications of US Constitution and Bill of Rights. In so doing I found that the earliest legal history materials have no punctuation, no paragraphs, no italics or underlinings -- none of what we today recognize as being "standard" forms and grammar. Though through evolution "standards eventually came to be, the iffiness continued through those ratifications; there wasn't even by then much of a standardized spelling: John and Sam Adams were cousins; both were educated at Harvard College; yet John spelled the word "Governor," and Sam spelled it "Governeur".

The meanings can be readily discerned, through logical consistency, but fancy-assed stuff like "parts of speech" don't have much relevance. "People" is obviously plural -- "We the people". And "person" is clearly individual. There is no need to go beyond the plain text, except at most to the legislative history -- the debates of that which became the Bill of Rights, from which we learn the Framers' views were of "religion"; and that the First was to be as Framers and Founders otherwise wrote in non-law writings, and as they incorporated in their earlier state constitutions: a complete separation between gov't and "religion".

". . . . and try and find some actual debate on the actual first amendment, and not debate on a early version. . . ."

The debates of that which became the Bill of Rights are available, and in print, as: Creating the Bill of Rights: The Documentary Record from the First Federal Congress (Baltimore, MD: The Johns Hopkins University Press, paperback, 1991), Edited by Helen E. Veit, Kenneth R. Bowling, and Charlene Bangs Bickford.

"Thomas Jefferson's opinion in a letter on the degree of contact (or lack thereof) he preferred between the state and religion is irrelevant."

Agreed. But the views recorded in the legislative history -- the debates -- do have direct relevance as they are primary materials and legal authority.

"The First Amendment's text is clear that the federal government shall not establish a state religion, that was the understanding of the text among the drafters and the ratifiers of the Constitution and that was the understanding of the courts for most of our history. It was not until the leftist FDR Court a century and a half later that Mr. Jefferson's opinion gained the status of its own amendment to the Constitution.

"# posted by Bart DePalma : 6:42 PM"

Not true, of course. This is from the first VT constitution -- noting in advance of reading that it does not stipulate that one must have -- is not exempted from -- a/any/a particular "religion," that one must have a "religion," as the language in it makes such requirements impossible --

Ch. I., III. That all men have a natural and unalienable right to worship Almighty God, according to the dictates of their own consciences and understanding, regulated by the word of God; and that no man ought, or of right can be compelled to attend any religious worship, or erect, or support any place of worship, or maintain any minister, contrary to the dictates of his conscience; nor can any man who professes the protestant religion, be justly deprived or abridged of any civil right, as a citizen, on account of his religious sentiment, or peculiar mode of religious worship, and that no authority can, or ought to be vested in, or assumed by, any power whatsoever, that shall, in any case, interfere with, or in any manner controul, the rights of conscience, in the free exercise of religious worship: nevertheless, every sect or denomination of people ought to observe the Sabbath, or the Lord's day, and keep up, and support, some sort of religious worship, which to them shall seem most agreeable to the revealed will of God. [F]ramed by a convention . . . assembled at Windsor, July 2, 1777, and completed . . . July 8, 1777. The Federal and State Constitutions Colonial Charters and Other Organic Laws of the United States, Part II. (NY: Burt Franklin, nd), Benjamin Perley Poore, at 1859.

Before jumping to preferred conclusion: one cannot secure the right of freedom of conscience, on one hand, and also, on the other, require a person to believe a particular "religion" -- or any "religion".

A "freedom of conscience" which didn't allow the individual to believe or not believe freely, according to his own choosing, would be a sham. You demand that it be a sham.

voted for him because I figured he might nominate originalists by mistake, or under pressure. And there was no way that would happen with Gore or Kerry.

# posted by Brett : 9:04 PM

Yer right: You voted for Bushit because you knew he'd make mistakes, but that Gore and Kerry would not make mistakes.

Smart move.

"Originalism," by the way, is bullshit which invariably entails writing decisions to existing conclusions, regardless how much of the "law" rationalizing the conclusion must be made up out of thin air. And that, son, is the definition of "activist judging" to which your "originalist" frauds so object.

"Actually, the Establishment Clause both bars Congress from creating a new state church ala Henry the VIII's Anglican Church or choosing a preexisting religion as the state church as the Spanish did with the Catholic Church."

Methinks you accidentally told the fuller truth. Not being perfect, such an accident can happen.

"How am I reframing the question? The Establishment Clause barred Congress from establishing a state church. Thus, the Establishment Clause does require a separation of church and state to that degree."

And now you err in the erroneous direction.

The First Amendment prohibits the establishment by gov't (Congress being the law-making body) of a or any "religion". As well, as you correctly stated by error above, it prohibits the gov't from favoring a or any "religion" above any other.

Add in the fact that one cannot require one taxpaying person's freedom of conscience to support via taxes the "religion" of some other taxpaying person's "religion" (atheism not requiring financing) and you've got a complete separation of church and state.

"Jefferson can be read as arguing for a complete wall between church and state."

And he's correct. But irrelevant as he was in effect French during the debates of that which became the Bill of Rights, and his writing on the topic after the fact was extra-legislative/non-law.

The Roberts opinion goes no further than saying that it is possible to construe the meaning as endorsing illegal drug use. Worse yet, in order to make the argument that it is possible, Roberts resorts to accepting Principal Morse's insertions, in square brackets, of words that were NOT even in the banner. Roberts accepts Morse's "[take] bong hits" and "bong hits [are a good thing]" (p. 7). This is utterly ridiculous. Why not "[don't take] bong hits" or "bong hits [are bad]" or perhaps "bong hits [should be allowed for cancer sufferers]". If one is allowed to argue from non-existent words that a sign promotes illegal drug use, or anything else, we are going to enter a very weird age of law making.

The motivations of the judges decisions are mysterious.

# posted by Peter : 2:22 PM

Nothing mysterious about it. It's called "judicial activism" or "activist judging" -- by extreme right wing "Christians" who lie that they oppose it when attributing it to those they call "Liberal" and "Left" simply because they don't like the decisions in question.

Thus they, moral relativists who claim to possess absolute Christian truth, are all for judicial activism when it falsifies its way to their preferred conclusion.

They are about imposing their will on everyone -- except themselves; it's only others than themselves who need "saving," and only they who know how to do that by means of lying in the form of pseudo-law; otherwise they have no concern whatsoever for truth, or rule of law, or "originalism" or "original intent" and all the other pseudo-law junk they invent on their way to establishing their utopian tyranny.

We see that here with such as Charles: his getting his way is more important to him than the ugly consequences for minorities which will predictably result, at which point his premise will be to blame the victim.

"Not at all -- I read the words: "Bong Hits for Jesus" as advocating illegal drug use -- that it could have other hypothetical meanings is almost irrelevant."

I see: so your interpretation of the phrase out-of-context can be the only legitimate interpretation, the only truth. But that requires the assumption that those who came up with the phrase are Christians -- which clearly flies in the face of your "there can only be one correct interpretation" interpration.

I'll assume you're simply stupid. That phrase couldn't be more clearly a poke in the eye of santimonious blathering "Christians" who are so insecure in their "Faith" that they don't yet know the menaing of harassing others with one's bullshit based upon a bogus claim that one has a "right" to do so because some unevidenced "god" allegedly told some third party so.

The bottom line is that you'll affirm anything with which you agree, and you couldn't care less whether it is actually true. That makes you not a Christian but a liar.

". . . and I certainly agree with the Court that "The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers."

Based upon an "only my interpretaion can be true because it's the one I want" which flies in the face of the fact that in your simultaneous view, Christians wouldn't smoke dope, let alone encourage others do so.

Calling you an ass is accurate: you'll affirm anything which you believe supports your position, even if you must twist it to get it to do that, and whether it is true is wholly irrelevant. That, again, makes you not a Christian but a liar.

And, I would agree that the Establishment Clause requires, and was meant to require, only that Congress may not establish a state religion. I think a good argument could be made that Christianity is allowed to be favored, just no official adoption of a single DENOMINATION within Christianity is what the majority intended.

# posted by Charles : 4:12 PM

You, "sir," are an ass, and an ignoramous, and worse --

1. Among the Founders and Framers were Jews.

2. Jews fought and died in the "revolution".

3. Judaism is not Christianity.

Thus,

4. You admit to being a bigot, not only against other "religions," but also against the Founders and Framers and the "system of laws, and not of men" (John Adams) which constitutes your country.

"I'm not calling for the repeal of the 13th, 14th, 15th Amendments, or any combination thereof (sorry I left that one out since it allowed you to level yet another unwarranted personal attack against me)."

The fact is, as I demonstrated -- you had no response, so instead lied that my statement of the objective history and purposes of and necessities for civil rights laws was a personal attack -- which it was not -- in the process revealing that it is true also about you -- that you don't actually know the full implications of what you support and are calling for. It's real simple, so even you should be able to grasp it:

The KKK -- with whom originates the "Christian nation" lie -- claims to be a "Christian" organization and admits to being terrorist. Those are the views you are supporting when you adopt and repeat the lie that the US was "originally a Christian nation" when the legal history abundantly substantiates othewise. When you support an extremist activist court which falsifies the law because you falsely perceive that it is somehow "on your side".

Yes: you enthusiastically support everything done by those who, as I pointed out, are about repealing even the 13th, 14th, and 15th Amendments. Whether your rancid racism is conscious or not, or you're so stupid you don't see it, is irrelevant: your racism is obvious, and you support the party of racism in everything it does, based upon a false meaning of "conservative" and your lock-step adherence to that falsehood.

And you lack the guts -- the psychological maturity -- to critically evaluate your beliefs for whether they are legitimate, or even coherent. What do you fear, chickenhawk: that they won't withstand critical scrutiny?

"Perhaps it would be better if we simply agreed to disagree and left each other alone?"

No deal, and not a chance, bigot. I've been a civil rights activist since first reading of my first hero -- Lincoln, and his principle, "Everybody equal before the law -- at 8-9 years old, and that is decades ago now. I despise useful idiots, fools such as you, who, in pursuit of their singularly self-centered and selfish fetishes, ignore all consequences in so doing. Especially when those consequences are destructive -- of others. The only thing worse than a racist is a racist who doesn't recognize that he's a racist, and that he is enthusiastically supporting the most heinous of racist idiotologies and movements. And then, when it is pointed out to him, ignores it in order to persist in his support of the stench of racism because it happens to be exactly suited to his central bigotry: being a fake Christian.

If "religion" is about "possessing" the truth, then why are you a liar?

"Except, of course, Madison is the one who wrote the First Amendment. His opinion of its meaning is therefore very relevant."

Not quite the fact. First, following MA-Bay's lead, several states which subsequently ratified the Constitution included with their Notices of Ratification proposed amendments. Madison, who successfully opposed (with no real opposition) the "necessity" for a Bill of Rights during the Constitutional Convention, thereafter changed his mind. Thus, in the first Congress under the Constitution, he collated and codified those proposed amendments and submitted it to the House as a proposed Bill of Rights, where it was met with a widespread "YAWN".

Nonetheless, he successfully sheparded it through debates -- during which debates it evolved through several versions, increasingly as distinct amendments. Thus it was the first Congress which wrote the First Amendment (and the other eleven submitted to the states for ratification), not Madison. (NRA shill's will assert that Madison wrote the Bill of Rights in effort to hurriedly pass over the inconvenient "detail" that the debates of that which became the Second show the exact opposite of the NRA's lie.)

I have no idea where the NRA came in, but Madison proposed the amendments, so, in that sense, he did write them. Of course they were based on previous thought - including the Federalists - but he was the prime mover. the point was, unlike Bush's signing statements claiming to state the meaning of laws, when Madison speaks on what he thinks an amendment means, he has some gravitas, since he was there, proposing and negotiating them. and since he was a member (a key member) of the First Congress, he certainly contributed to the drafting of the Amendments."Plus, for the reasons listed above, the debate you reference is not a debate on the actual language proposed to (and ratified by) the states, and is therefore irrelevant."

Extra-legislative materials (such as The Federalist) have no legal authority on the issue, however interesting they may be to the historian. The legislative history -- the debates -- though is relevant as primary materials and legal authority.

uh, no. legislative history is not legal authority. it is sometimes referred to to ascertain meaning when a statute is unclear, but most jurists are hesitant to use it because of the compromise associated with legislative history. Further, it is not convincing to reference a debate regarding preliminary language as support for an interpretation of the eventually ratified language. Mr. DePalma's argument sought support in a debate where Madison stated the proposed Amendment meant "X". However, the language Madison was interpreting in August was not what would become we now know as the First Amendment in September. instead, it was an earlier version. Thus is the dangers of legislative history. Madison's interpretation of a statute that was never passed is worth bubkis."Further, you did not address the plain text of the amendment. "establishment" is not a verb in the amendment, and instead is a clause referring to religious institutions. you have not cited anyone commenting on the final form to have a different reading. "an" is an indefinite article, which modifies a noun when the noun refers to any member of a group. in this case any of the "establishment[s] of religion.""

Presentism. My education in Constitutional law began with going back to the very beginnings of the colonies on this continent -- New-Plimoth being the first stable -- and consists in reading the law from there to and through ratifications of US Constitution and Bill of Rights. In so doing I found that the earliest legal history materials have no punctuation, no paragraphs, no italics or underlinings -- none of what we today recognize as being "standard" forms and grammar. Though through evolution "standards eventually came to be, the iffiness continued through those ratifications; there wasn't even by then much of a standardized spelling: John and Sam Adams were cousins; both were educated at Harvard College; yet John spelled the word "Governor," and Sam spelled it "Governeur".

The meanings can be readily discerned, through logical consistency, but fancy-assed stuff like "parts of speech" don't have much relevance. "People" is obviously plural -- "We the people". And "person" is clearly individual. There is no need to go beyond the plain text, except at most to the legislative history -- the debates of that which became the Bill of Rights, from which we learn the Framers' views were of "religion"; and that the First was to be as Framers and Founders otherwise wrote in non-law writings, and as they incorporated in their earlier state constitutions: a complete separation between gov't and "religion".

plain text analysis is the starting point for any interpretation of law. the plain text of the Constitution does not support Mr. DePalma's minimalist interpretation, because of the structure and grammar of the clause. Reading English is not "fancy-assed", but the primary way of discerning meaning (and is typically a lot more consistent than legislative history). this whole argument of yours makes no sense: in one sentence, you say its fancy-assed, in the next you say there is no reason to go beyond the plain text. do you interpret plain text by ignoring English grammar and structure?

". . . . and try and find some actual debate on the actual first amendment, and not debate on a early version. . . ."

The debates of that which became the Bill of Rights are available, and in print, as: Creating the Bill of Rights: The Documentary Record from the First Federal Congress (Baltimore, MD: The Johns Hopkins University Press, paperback, 1991), Edited by Helen E. Veit, Kenneth R. Bowling, and Charlene Bangs Bickford.

yeah, thanks, i already have that one. i was asking Mr. DePalma to find some support for his contentions that the Framers did not feel as I have demonstrated they felt. there isn't a whole lot in the legislative history as to the meaning of the final version of the Amendment. Mr. DePalma's citation is the largest debate, but it references only preliminary language. The lack of legislative history would seem to cause difficulties with your interpretive method in determining the meaning of "respecting an establishment of religion."# posted by nerpzilla : 5:25 PM# posted by JNagarya : 10:03 PM

Mr. Madison's veto statement is no different from one of Mr. Bush's signing statements advancing his interpretations of his Article II powers.

Except for the fact that the Madison vetoed bills that he felt were unconstitutional, as have almost all other presidents. IIRC, the last attempt to give the president the line-item veto was overturned by the Supreme Court. Bush has used it with a vengeance with his signing statements.

[P]lain text analysis is the starting point for any interpretation of law. [T]he plain text of the Constitution does not support Mr. DePalma's minimalist interpretation, because of the structure and grammar of the clause.

"Bart" is as much "minimalist" as he is the true "Federalist", which is to say, 'not at all'.... His 'interpretation' of the "religion" clauses here suits his own philosophical and social predilections, but in fact gives the gummint more expansive powers by minimizing the rights guaranteed by the First Amendment (of course, move on to the Second Amendment, and I'm certain he'd change his tune). "Cribbed and strained" interpretation would be closer to the truth.

And as you have demonstrated here, he's not any more a "textualist" either. I have demonstrated in other places that "Bart" has claimed to be the driving force behind the pressing of a legal argument that the Eleventh Amendment means precisely what it does not say, namely that it prohibits suits in federal court against a state by citizens of that state (based on subject matter jurisdiction, not diversity jurisdiction, obviously). "Bart" continues to ignore my requests for him to explain how he can reconcile this with his claims to be a "textualist". He can continue to ignore it, but, just as with text that is patent on its face in legislation, his inconsistency is obvious to all else here (Charles perhaps excepted); just because he doesn't see it or won't recongise or acknowledge it doesn't mean it doesn't exist and that eveyone else won't see his inconsistency and/or dishonesty.

Argumentum ad hominem (Latin: "argument to the person", "argument against the man") consists of replying to an argument or factual claim by attacking or appealing to the person making the argument or claim, rather than by addressing the substance of the argument or producing evidence against the claim. It is most commonly used to refer specifically to the ad hominem abusive, or argumentum ad personam, which consists of criticizing or personally attacking an argument's proponent in an attempt to discredit that argument. This line of "reasoning" is fallacious because the attack is directed at the person making the claim and not the claim itself. The truth value of a claim is independent of the person making the claim. No matter how morally repugnant you think a person might be, he or she can still make true claims.

Since that is the case, it really does not bother me one bit if you call me a liar, for instance, when I simply point out the words "our Lord" are indeed in the U.S. Constitution. I'm not here to do your homework. Have a nice life.

"Bart" is as much "minimalist" as he is the true "Federalist", which is to say, 'not at all'.... His 'interpretation' of the "religion" clauses here suits his own philosophical and social predilections, but in fact gives the gummint more expansive powers by minimizing the rights guaranteed by the First Amendment (of course, move on to the Second Amendment, and I'm certain he'd change his tune). "Cribbed and strained" interpretation would be closer to the truth.

A good point. I was a little sloppy in calling it minimalist. A more accurate term would be "narrow reading."

No, bitwapper, I am basing that opinion on everything I know about Jefferson vs. everything I know about Mr. DePalma (although I just noticed today DePalma JR so I may have misattributed some of that knowledge herein). Any other questions?

If not, can you please answer the pending questions on the Trojan Condom" thread or even this one from a previous Cheney thread, where you claimed "With no accountability or balance/check of power, it's a clear weakness in the structure of the government." and I asked "What part of 'the Vice President can be removed by impeachment' are you having trouble with?"

Charles, after cutting'n'pasting a definition of argumentum ad hominem:

Since that is the case, it really does not bother me one bit if you call me a liar,...

Caling you a dishonest azo (and demonstrating such) is not argumentum ad hominem. Calling you a "fetid bastard that sodomises the goat that sired him" would be such, as it doesn't go to the argument being presented. Saying you're dishonest in your argument is a direct critisism of such. Don't take it personally.

A more relevant Jefferson quote would be "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed",

federalists, anti-federalists, strict constructionists, original intent, and gramatical and textual arguments are irrelevant. The constitution means whatever we chose it to mean. In my lifetime I watched the east german government vaporize when its citizens took to the streets and withdrew their consent. The words of the constitution, bill of rights, Jefferson, Madison etc. have weight to the extent we see them and as putting forth truths. Free speech or the establishment clause are as broad or narrow as we choose them to be. There is no sacred authority to the word grammar and syntax of the constitution or framers. Though a great deal of respect may be owed for their accomplishment

Sorry, dhlli, but according to nerpzilla: "The Declaration of Independence, while a wonderful document that encapsulates many principles of the republic, is not a legally binding document." So, I guess your Jefferson quote is irrelevant as well.

As far as the passing the drug test is concern, I tried this detox drinks and capsules, which is available and passing a drug test was easy, it really worked. Now I am in to new job too. Got out of depression too.

They aren't "rolling back past overreaching opinions" - they're rolling back principals the country was founded on.

"Because it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?"

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